Guantanamo judge’s secret order on secret motion is so secret defense lawyers can’t see it

In the latest installment of the Guantanamo war court’s most mysterious legal filings — two motions so secret that the public can’t know their titles — an Army judge has issued a classified order to prosecutors that even the defense lawyers can’t see.

The Pentagon disclosed the existence of Army Col. James L. Pohl’s judicial order dated June 4 in a recent website notation in the capital case of the accused USS Cole bomber.

Defense attorneys in Guantanamo’s 9/11 death-penalty case say Pohl issued a classified order on June 4 in an identical filing. Its existence has yet to be disclosed on the military commissions website whose motto is “Fairness, Transparency, Justice.”

When prosecutors filed the secret motions simultaneously in August 2012, defense attorneys were allowed to read some of the legal argument. But after two years and at least nine more prosecution filings for the judge’s eyes only, he has issued an order that only the prosecutors can see.

From the access that defense lawyers have had, they argue, the legal filings the prosecution and judge are keeping secret don’t meet the government’s own definition of what can be classified.

“Even if it’s OK to have secret proceedings ... this one is a not a good candidate. But I can’t tell you why. What use is that?” says Jay Connell, the Pentagon-paid defense attorney for alleged 9/11 conspirator Ammar al Baluchi.

Rick Kammen is the attorney for Abd al-Rahim al-Nashiri, who is accused of orchestrating al-Qaida’s October 2000 suicide bombing of the USS Cole warship that killed 17 sailors. “I’ve seen nothing at Guantanamo that in any real world sense should be classified,” Kammen said. “But I don’t make the rules I just follow them.”

What the two cases have in common is that the CIA held al-Nashiri and the five men charged in the 9/11 attacks for years in secret overseas prisons where, the accused and their lawyers say, they were tortured.

Prosecutors gave the judge the secret motions in August 2012 — stamped “secret” in red and stashed in a secret annex in Alexandria, Va. More secret filings followed, their substance so secret that even the titles are under seal — something prosecutors won’t explain in public or even provide a clue.

And now that the judge has issued an order?

“The prosecution has no specific comment for you on these matters,” spokesman Army Lt. Col. Myles Caggins III said.

The judge has held two secret hearings on the secret matter — June 14, 2013 in the USS Cole case, Aug. 13, 2013 in the case of the accused Sept. 11 plotters. For the first of these, the judge not only excluded the accused, the public and media but also the guards. “Go ahead and leave, guys,” the judge said in the portion of the heavily redacted June 2013 transcript that was cleared for the public to read.

It shows a federal prosecutor invoking a secret filing for the judge’s eyes only, and a declaration dating to Leon Panetta’s time as CIA director, 2009-11, to justify “extremely sensitive” national security reasons for the secrecy.

Two months later, in a transcript of the 9/11 case hearing that’s equally hard to understand because of the blacked out portions, a prosecutor argued that only the judge needs to know:

“The United States government has said it’s classified,” said Joanna Baltes, a civilian on loan to the prosecution from the Justice Department. “That is not something that needs to be shared to defense counsel, and absent authority to the contrary we would decline to do so.”

At the heart of the issue is a disagreement between the prosecution and defense, in both cases, over what the government can keep secret by invoking a National Security privilege or relying on classified information.

“You have to make something public about why it’s secret so we can have a debate about it,” says Connell, Baluchi’s lawyer, of the process that leaves defense attorneys in the dark as well as the public. “The way they’ve worked it out ... nobody other than the prosecution and the judge know why even it should be a secret.”

At the Pentagon, Caggins said only the judge can decide whether the public will ever see what it’s about, or learn how he rules — a calculus that got more complicated Thursday when Pohl announced he was handing off the al-Nashiri case. He assigned an Air Force judge, Col. Vance Spath, to preside in a detailing order that suggested he’d polish off the secret motions with final rulings before Spath gets to Guantanamo for next month’s hearings.

Defense lawyers in both cases have asked the judge to order the prosecution to create an unclassified version of it for the defendants to see; the existence of such a secret ruling, they argue, drives a wedge between the attorneys who can’t talk about it and their clients who can’t know about it in an already tense and distrustful relationship.

Al-Nashiri, who was waterboarded by CIA agents and could be executed if convicted, “is interested in his case,” says Kammen. “And whenever he is excluded that is frustrating to him.”

Case prosecutors have noted, broadly, that such secrecy is lawful and modeled after federal court protections in civilian national-security cases.

As the prosecution’s classification expert, then Justice Department prosecutor Baltes defended the secret request for a secret something from the judge as “not related to any illegitimate national security reasons or reasons of embarrassment of the United States government.”

She has since left the case and is now serving as a senior executive at the FBI.